India’s next generation reforms must begin in courts

Last week, eighteen months after the crime, a special court in Pathankot delivered its verdict on the Kathua case. By Indian standards, this was a relatively quick judgment. Most cases in India, because of delays at both the police and judiciary level take far longer. Across India’s subordinate courts --- the first port-of-call for most cases --- more than a third of the 31 million cases have been pending for more than three years. In the High Courts, the pendency is even higher: half of all the 8 million cases in the High Courts have been pending for more than three years.

When cases remain unresolved for years, it hurts both society and the economy. The 2017 economic survey of the finance ministry pointed out that the slow resolution of economic and commercial cases was one of the biggest stumbling blocks in reviving the investment cycle in the country.

“The government’s efforts to make business and commerce easy have been widely acknowledged,” the survey said. “The next frontier on the ease of doing business is addressing pendency, delays and backlogs in the appellate and judicial arenas. These are hampering dispute resolution and contract enforcement, discouraging investment, stalling projects, hampering tax collections but also stressing taxpayers, and escalating legal costs. Coordinated action between government and the judiciary-- a kind of horizontal Cooperative Separation of Powers to complement vertical Cooperative Federalism between the central and state governments-- would address the “Law’s delay” and boost economic activity.”

Although this is a country-wide problem, some parts of the country are more affected than others, a Mint analysis of pendency data shows. The lower courts in West Bengal, Odisha and Bihar, in particular, struggle to dispose their cases. In all three states, nearly 50% of cases in the lower courts have been pending for more than three years. On many occasions, the pendency at lower courts translates to pendency at the state’s higher courts. In both Calcutta High Court and Odisha High Court, nearly 70% of cases have been waiting for a resolution for more than three years. Some state courts, though, dispose of cases more quickly. In Punjab and Haryana for instance, less than 6% of all cases have been pending for more than three years.

Overall, eastern states have much higher pendency rates compared to the western states of the country. The eastern half of the country is also much poorer than the western half, as an earlier Plain Facts column had pointed out.

In the Indian judicial system, a court’s ability to dispose of cases depends on both the volume of cases it has to process and the resources it has. On both these fronts, India faces challenges. Through 2006, 15 million cases were initiated in India’s lower courts but in 2017 this figure had increased to more than 20 million cases. Similarly, cases reaching the High Courts too have increased over the last decade.

Some legal scholars have speculated that increased cases in courts is a result of India’s development: a more prosperous society results in greater awareness of rights and empowers more people to turn to the courts.

But the increasing judicial burden could also be self-inflicted. Some scholars have pointed out that Indian High Courts are becoming more generous in accepting writ petitions (filed when fundamental rights are perceived to be violated). Of all the cases pending for more than five years in the high courts, 26% are writ petitions.

More importantly, even as the case burden has increased, court resources haven’t kept up. While India’s Supreme Court is now fully staffed (with 31 judges filling all sanctioned posts) for the first time in 18 years, the remaining courts remain chronically understaffed. The sanctioned strength of India’s High Courts is 1,049 but currently, there are only 680 judges in office (a vacancy rate of 37%). Similarly, in the lower courts, the vacancy rates for judges is at 25%.

The obvious solution to this would be to increase both the sanctioned strength of courts and hire more judges. In 2016, Chief Justice T.S. Thakur estimated that India needed 70,000 more judges to clear the legal system’s backlog. Over the last decade, the sanctioned strength has increased gradually but hiring hasn’t kept up - with vacancy rates increasing since 2006.

One reason for this is that recruiting judges takes time. According to one estimate by Diksha Sanyal and others of Vidhi Centre for Legal Policy, appointing a civil judge takes more than a year in several states.

Over the years, various commissions have laid out several recommendations to tackle the issue comprehensively. For instance, the 11th Finance commission in 2005 had recommended the formation of fast-track courts to expedite cases. More recently in 2014, the 245th Law Commission recommended setting up special courts adjudicated by recent law graduates to hear more trivial cases (such as traffic offences) and raising the retirement age of judges in lower courts. Last year, the Law Minister, Ravi Shankar Prasad had suggested implementing a centralized recruitment system for lower courts along the lines of the Union Public Services Commission. Some of these reforms, such as fast-track courts (used in the Kathua case), have been implemented, but others have not. Given how rising pendency hurts the Indian economy, more reforms are urgently needed.

This is the first in a two-part data journalism series on reforms in India’s law enforcement and judicial machinery.